Premature Emancipation? A Pragmatist's View of the Gay Marriage Struggle

12/06/2008 05:12 am ETUpdated
May 25, 2011

Albert Einstein famously opined that the definition of insanity is "doing the same thing over and over again and expecting different results."

After the crushing blow to the lives and psyches of gay people nationwide with the passage of discriminatory ballot initiatives in the Election 2008 referenda in California, Arizona and Florida banning gay marriages, I suggest that the gay community's political strategists post Professor Einstein's erudite piece of advice on their office walls. One needs to look no further than to the well-intentioned members of (my own) gay community's leadership for answers.

And, I'm sorry to say that my colleagues and I -- people of great strength, intellect and heartfelt determination -- who fought so hard and contributed so much to this effort may not be in the mood to tolerate constructive criticism. My apologies, but while we may not be happy with where the ultimate responsibility for this debacle rests, self-reflection and internal debate are always constructive.

In the spirit of full disclosure, I joyously married my same-sex partner of ten years in July 2008, drinking from the cup of the newfound liberty afforded by the California Supreme Court decision on May 15, 2008 which reversed the heinously misguided voter initiative of November 2000 that banned same sex marriages. I share some of the responsibility for this electoral misstep with my like-minded gay peers -- I wanted to get married, the California Supreme Court cleared a path, so why not take the step that brought us near-equality with our heterosexual counterparts?

Why, Tuesday night, did gay people on the correct side of the U.S. Constitution and American history, fail to persuade enough voters that our arguments were valid?

Three simple reasons -- we lost on Tuesday because we failed to heed the lessons of civil rights history, the examples set by our counterparts in other nations and the tactics of smart negotiation.

The gay civil rights movement forced "Red and Blue America" and their religious institutions -- most notably the Mormon Church, which funneled tens of millions of out-of-state dollars into the "Yes on Proposition 8" California ballot initiative -- to hold an electoral referendum on the meaning of marriage -- probably the most foolish thing a civil rights movement can do when the very word "marriage" already defines an unconstitutional mélange of Church and State.

Marriage in the United States is, first and foremost, a civil contract between two consenting adults which binds them together in a secular legal union that confers over 1000 special civil rights and privileges not currently afforded to committed gay couples. The most important are financial security (social security and pension survivorship benefits, tax benefits, etc.) and socially-recognized spousal status (e.g. the ability to make decisions for and visit one's ill spouse in the hospital, etc.). Remember, one has to obtain a "marriage license" from the State before one can legally marry in any religious or civil ceremony.

It is manifestly hypocritical that heterosexual couples with no intention of reproducing can marry in a civil ceremony and be granted all of these rights -- ostensibly designed to "protect children" in a family unit of shared responsibility and pooled financial resources -- while gay couples who have lived as a family for decades are granted none of these "protections."

All parties in the transaction are citizens of this great nation. Why then does the equal protection clause of the U.S. Constitution not afford the same opportunities to all Americans, gay or straight? The short answer is that it does and it will. The real question is when?

The "institution of marriage" remains erroneously conflated with all sorts of religious connotations which, in this theocratic-leaning society, have become a divisive front in the culture wars of this nation. The Karl Rove-trained wedge-issue strategists have embraced it in their "guns, gays and God" plans to divide and conquer the electorate. And it works.

Poorly informed voters, anti-gay zealots and your well-meaning next door neighbor are drawn to this "definition of marriage" as between one man and one woman because it is steeped in tradition, close to their hearts, what they are taught in Church on Sunday and how they live on the most personal level every day. To most people, it's just "common sense."

While I'm not typically one of those people who second-guess my own or other people's strategic decisions when things aren't going well, I have a duty to my community, my gay brethren (and "sistren"?), and myself to point to what I believe are our obvious missteps in the effort to advance our cause.

For the record, I contributed more of my own hard-earned dollars to this cause than I've ever contributed to an election issue in my lifetime and I even spoke out as an invited guest on conservative talk radio about the issue at hand -- civil rights -- actually convincing my right-wing hosts that our civil rights argument held water.

But after a wrenching Tuesday evening spent digesting the enormity of what just happened to us as gay Americans at the polls across the nation, I am temporarily suspending my usual policy of keeping my opinions about political strategy to myself.

To be perfectly blunt, we in the gay rights movement just shot ourselves in both feet with an overreaching and self-defeating "politically correct" agenda that put emotionally-charged terminology before the law -- a misstep that was attempted before, ill-conceived, avoidable and poorly timed.

We should have been smarter than those four California Supreme Court judges this time and taken into account the cultural and political ramifications of their judicial decision before we rushed to the altar. We could have learned from past failed strategic mistakes and decided whether or not to act on this ruling as a "license to marry" or merely as a stepping stone to achieving our full civil equality.

We unfortunately chose the easy and obvious path once again to embrace this decision as the equivalent of society's acceptance of gay "marriage" -- when in fact it was actually a narrow California Supreme Court legal victory -- and in the process we avoided the more difficult and longer-term strategic decisions that the arc of all successful civil rights struggles require. And for the record, I know and agree that the concept of "separate but equal" is not a viable long-term civil rights strategy.

Obtaining and enshrining our civil rights into law, however, are far more pressing issues for gay individuals. gay couples and gay familes than whatever we decide to eventually name it -- be it marriage or civil unions. In fact, in Great Britain, "civil partnerships" have been alive and well and an accepted part of their culture since December 2005 and afford their gay citizens the following rights:

*If one partner dies before the other, the survivor will be treated like married couples if there is no will
*Survivors will inherit property the same as married couples
*Social Security Rights
*Pension Benefits
*The ability to get parental responsibility for a partner's children
*Recognition for immigration
*Recognition under intestacy rules
*Income related tax benefits
*Responsibility for child support
*Civil Partners may jointly apply to adopt children

Why are we gay Americans so myopic that we fail to look no further than our own domestic shores for inspiration?

Cooler and possibly more historically-seasoned voices must be heard at strategy sessions at the gay civil rights organizations that so many of us entrust with our earnest volunteerism and hard-earned money. We need to explore our disappointment with serious introspection, more judicious philanthropy, and a major reorganization of our civil rights strategy.

Why are we doing exactly what Einstein cautioned regarding "the definition of insanity" in our ongoing efforts to gain our civil rights? Repeating our past missteps will not bring us any closer to the goal. Something in our strategic thinking needs adjustment and I believe that the answer lies in two words: patience and pragmatism.

The ambitious, politically-seasoned and well-intentioned leaders at Human Rights Campaign and Equality California who we supported to spearhead this equality effort predictably acted on righteous indignation and strategic impulse -- mistakenly convincingly themselves that "this was our window of opportunity" -- and in the process they may have torpedoed 20 years of forward movement in a single election.

Let's be clear about what happened. Civil rights are an American tradition and most Americans support mutual fairness in principle. The concept of "marriage," however, is a term so suffused with religious and cultural overtones that it crosses the supposedly Constitutionally-drawn line in the sand between Church and State, between the parochial and the secular -- a boundary that we accuse evangelical Republicans of repeatedly violating in their efforts to inject their values into public policy.

Gay Americans rushed across that boundary without realizing just how much we were challenging deeply held traditional beliefs. And we got pushed back.

Civil rights are not won in the war zone of national elections or State referenda but, rather, in a series of small but important evolutionary steps.

Fresh off the 2003 Lawrence v. Texas Supreme Court victory that decriminalized our long-outlawed private behavior and the 2008 California Supreme Court ruling in which the Court -- in a narrow 4 to 3 decision -- rightly opined that sexual orientation, like race or gender, "does not constitute a legitimate basis upon which to deny or withhold legal rights" we were drunk with our own successes. The highest court in the State overturned a voter ballot initiative that passed in 2000 banning same-sex marriages, so why not "go for the gold?"

Here's why. Gay community advocates forgot to reflect on what didn't work in past struggles, learn from these failures and chart a new strategic course. Cocky and restless from years of electoral ups and downs, we failed to take to temperature of the electorate once again. With dopamine awash in well-intentioned activist brains, our appointed spokespeople decided that we'd continue to advocate for the hot-button term "marriage" rather than "civil unions" before we paid proper heed to our own civil rights. We immediately demanded our piece of the "marriage" pie before our neighbors had a chance to digest their dinners. Not a shrewd move.

The rest of the country wasn't ready yet, and we knew it. Countless polls --including those in my own liberal bellwether state, California -- showed that most Americans favored gay civil rights - including civil unions -- but the honorific of "marriage" made them quiver.

Failing to heed these polls and the timetables of the civil rights history, our leaders skated over the fact that major advances took decades to materialize. African-Americans finally got the right to vote without restriction 100 years after being freed from slavery. It took 72 years, from the first Women's Suffrage Convention in 1848 to the 19th Amendment ratification in the Constitution in 1920, before women won the right to vote.

From the earliest days of 1950s secret gay Mattachine Society to our post-ACT-UP world of openly gay everything, we have followed a similar path to equal rights that other oppressed minorities have taken -- small steps, taken over many years, to incrementally acclimate our neighbors to peaceful coexistence with us. Until this election cycle.

Why did our fearless leaders goad us into thinking that we'd be better served by pursuing an aggressive strategy similar to previous failed ones? Because we were morally right? Being right doesn't mean you win. Because we were tired of waiting in line outside the members-only club of American minorities with full civil rights? Other minorities have struggled longer. Because we'd won a few basic skirmishes and now were ready to conquer America? Only in Spielberg movies.

We did it because we were pissed off and we got impatient. We did it because the tabloids shoved into our faces on a daily basis that vacuous celebrities like Britney Spears were bestowed with more rights in 48 hours of an impulse Las Vegas marriage than committed gay couples are granted in 30 years of committed cohabitation. We did it because we wanted it now, regardless of terminology or strategy.

We were angry. We were energized by Lawrence v. Texas and the Massachusetts Supreme Court and San Francisco Mayor Gavin Newsom's civil disobedience. We even heard what was once unthinkable: right-wing politicians and radio pundits pondering marriage-like civil rights for us -- of course, without the word "marriage" attached.

My first thought was "grab it while they're offering." I felt we could establish a stronger beachhead from which to advance our cause when we had our civil rights firmly in hand. But we balked and claimed that anything less than "marriage" would be demeaning and socially irresponsible. "Separate but equal" never works, we rightly reasoned. But did anyone take a deep breath and really think this one through?

Marriage was supposed to be the next stop on our freedom march to full equality. Because of our brains, our organizational skills, our war chest of millions of dollars, and our petulance, we presumed we could skip the usual prerequisites of winning the "hearts and minds" of the American public. We were wrong.

So swept-up in the moment were we that we ignored an important fact: even decent-minded straight people were having difficulty grasping the concept of "gay marriage." In response to the barrage a vile and misleading TV ads sponsored by the Latter Day Saints and California Black Pastors, some straight folk were understandably confused and started asking legitimate questions:

• "Well, I'm all for fairness and civil rights, but what does 'marriage' mean if it's not between a man and a woman?"
• "If gay people can marry, does this redefine the nature of the commitment between my spouse and me?"
• "Doesn't changing the definition of marriage threaten me and my children in some way?"
• "Are they going to teach my five-year old about two-mommies and two-daddies in pre-school?"

Those are concerns that needed to be addressed before we embarked on a society-wide referendum. There was more social campaigning to be done. But we acted capriciously.

Indulge my medical background for a moment for a clinical analogy. Premature ejaculation is defined as a condition in which the male is overly sensitive, overstimulated, and comes to climax too soon, leaving his partner without a satisfactory experience. If this happens often enough, the person with this condition is often rejected in the relationship. A therapist might advise him to slow down and to expend more effort connecting emotionally with the partner. These efforts often lead to a more mutually acceptable relationship.

In Election 2008, we were feeling the legal "love," we got ourselves overheated and we reacted too early and with too little sensitivity for the feelings of others, and now nobody's satisfied.

We owe it to our community to spend our political capital wisely, to set a better example as responsible adults and to secure for our gay youth a brighter future. Campaigning for gay civil rights will be a marathon to the finish line, not a quick sprint.

We should work to secure our civil and legal rights well before we choose the ultimate battle of naming our unions "marriage." Unpopular to the reader as this all may sound, take a look at where we are now. With several states not only constitutionally banning same-sex unions but domestic-partnership benefits as well, we have taken a giant step backward for all of gay-kind.

Yet there is hope on the horizon. From the ashes of this defeat will emerge a wiser approach that will first get us what we need before we pick out the caterer for our (next) weddings.

Indulge me in one last random observation from channel-surfing Tuesday night in order to avoid the pain of post-election political analyses and finally settling on blankly staring at a nature program on the National Geographic Channel.

Ostriches are interesting creatures, best known for their curious habit of sticking their heads in the sand to avoid detection by predators, despite the fact that their heads are tiny and their bodies huge (200 to 300 pounds). Ostriches are powerful animals, they travel in flocks, they can run very fast, they love to bathe -- and they have been hunted nearly to extinction in the past century.

With the exception of their pretty feathers and the laying of large eggs, the gay community shares many of the same characteristics. We do, however, have bigger brains. I sincerely hope that after Election 2008 we pull our heads out of the sand so that our dreams don't meet the same fate.